Holland & Knight - Indian Law Alert - May 2006

Indian Law
Alert - May 2006

Quarterly Report

May 25, 2006

CAPITOL HILL

Since beginning the Second Session of the 109th Congress on January 1, both Chambers have tackled a number of issues, including the confirmation of a new Supreme Court Associate Justice; the lobbying scandal; and the annual appropriations process. Following Representative Tom DeLay’s resignation as Majority Leader in the House, Representative John Boehner (R-OH) was elected as the new Majority Leader. Since taking the helm, Representative Boehner’s diligence has enabled the House to pass bills reauthorizing the USA PATRIOT Act and the Office of National Drug Control Policy Reauthorization Act, a bill to fund the Low-Income Home Energy Assistance Program (LIHEAP), and the College Access and Opportunity Act. Meanwhile, the Senate has passed a bill reauthorizing the PATRIOT Act, a Congressional Budget Resolution, a Debt Limit Extension, a bill to fund LIHEAP, and the Legislative Transparency and Accountability Act (lobbying reform).

Success in early 2006 has not come without some roadblocks. Before the April Recess, the House failed to pass a Congressional Budget Resolution, which should have been passed before April 17. Moderates are refusing to support the Resolution because they claim that it fails to account for emergency spending and continues to limit discretionary funding to their financially-strapped districts. The House has not scheduled when it will return to the debate. Similarly, the Senate failed to pass an important measure prior to Recess: the Immigration Reform bill. Despite the efforts of Senator Majority Leader Bill Frist, conservative Republicans are unsatisfied with the bill’s current provisions and Democrats have refused to provide for effectual concessions through the amendment process. The Judiciary Committee is expected to report a revised bill by May 4. The House already passed a strict immigration reform bill in December 2005, though many of its provisions are not expected to remain through the conference process.

After returning from the April Recess, the House immediately began addressing a lobbying and ethics overhaul bill proposed by Representative Dreier (R-CA), Chairman of the Rules Committee. Despite a brief impasse, the bill is expected to go to the floor in early May. Meanwhile, the Senate has focused on the FY 2006 war and hurricane relief emergency supplemental package, which has involved contentious debate. On April 26, the Senate approved an amendment to the bill, which redirected nearly $2 billion for border security. However, the President has threatened to veto the bill if it exceeds $94.5 billion. The price tag is currently at $106.5 billion. A cloture vote, to limit debate, is scheduled for the first week in May.

FY 2007 Budget and Appropriations

The President’s Budget

On February 6, 2006, President Bush sent a $2.8 trillion FY 2007 budget to Congress that prioritizes military spending on the war against terrorism and proposes to trim domestic spending from two-thirds of all federal agencies. Funding for the Departments of State, Veterans Affairs, and Homeland Security are proposed to be increased while 141 programs are slated for elimination or substantial reduction. Eleven agencies would see a decrease in total amounts, with the Departments of Transportation, Justice and Agriculture impacted most.

FY 2007 Bureau of Indian Affairs (BIA). Under the President’s proposed budget, the BIA would receive $2.2 billion, $52.4 million less than the FY 2006 amount. The Bureau chose to focus resources in the areas of trust and education, with over $11 million proposed to be added to the management of trust resources, while education programs under the Operation of Indian Programs (OIP) are decreased by $7.3 million. Significant decreases are also proposed for construction and welfare assistance. Johnson O’Malley grants were eliminated entirely. However, Law enforcement is slated for an $8.2 million increase. It is expected that these funds will be used in high risk areas. Contract support costs are also proposed for an increase in funding, adding $19 million to the budget.

FY 2007 Indian Health Service. Under the President’s budget, the Indian Health Service (IHS) would receive $4 billion, a net increase of $124 million over the FY 2006 amount. The increase includes elevated funding for clinical services, preventive health care, contract support costs and facilities and environmental health support. There are a few significant decreases, including a decrease in Health care facilities construction funding by more than 50%, a $20 million cut. In addition, the Urban Indian Health program was eliminated, which has caused great controversy. During the hearing before the House Appropriations Subcommittee on Interior, Environment and Related Agencies on March 8, Chairman Taylor (R-NC) expressed his intent to restore or increase funding for IHS.

FY 2007 Department of Justice. The President requested $19.5 billion, a $1.5 billion decrease from the FY 2006 enacted amount, for the Department of Justice (DOJ). Drug Courts grants, while not available to tribes alone, would see an increase of nearly $60 million under the proposed budget. A significant portion of the funding has gone to tribal governments in the past. Meanwhile, the President requested $3 million for the Partnerships for Indian Communities Discretionary Grant Program, which would maintain its funding current funding level.

FY 2007 Department of Housing and Urban Development. The Department of Housing and Urban Development’s (HUD) proposed budget is $33.6 billion, a $700 million decrease in funding from the FY 2006 enacted amount. As stated at a hearing before the Senate Committee on Indian Affairs on February 14, 2006, approximately $696 million is specifically for Native American and Native Hawaiian housing and community development. Just over $620 million of that amount is slated for allocation through the Indian Housing Block Grant Program, a $4 million proposed decrease from last year’s enacted amount.

Program/Agency	FY2007 Request	Change from FY2005 Enacted
Department of the Interior	$10.5 billion	-$332.2 million
Bureau of Indian Affairs (BIA)	$2.2 billion	-$52.4 million
* BIA Construction	* $215 million	* -$56.5 million
* BIA Welfare Assistance	* $74.2 million	* -$11 million
* BIA Education	* $639.1 million	* -$7.3 million
* BIA Johnson O'Malley Grants	* *$0 (eliminated)*	* -$16.4 million
* BIA Law Enforcement	* $201.6 million	* +$8.2 million
* BIA Contract Support Costs	* $151.6 million	* +$19 million
Office of Special Trustee	$244.5 million	+$21.7 million
* Land Consolidation	* $59 million	* +$25.4 million
Department of Health and Human Services	$65.9 billion	-$1.4 billion
Indian Health Service (IHS)	$4 billion	+$124 million
* IHS Clinical Services (CS)	* $3 billion	* +$147 million
* CS Contract Support Costs	* $554 million	* +$37 million
* IHS Urban Indian Health Program	* *$0 (eliminated)*	* -$33 million
* IHS Health Care Facilities Construction	* $18 million	* -$20 million
* IHS Facilities and Envr. Health	* $161 million	* +11 million
* IHS Preventive Health	* $125 million	* +$8 million
Department of Justice (DOJ)	$19.5 billion	-$1.5 billion
DOJ Drug Courts Program	$69.2 million	+$59.3 million
Department of Housing & Urban Development	$33.6 billion	-$700 million
Indian Community Development Block Grants	$57.4 million	-$1.8 million
Indian Housing Block Grants	$620 million	-$4 million

After numerous hearings on the bills, the first House appropriations subcommittee mark-ups are set to begin on May 3rd. Agriculture, Interior and Military Quality of Life/Veterans Affairs appropriations bills are tentatively slated for debate on the House floor late during the week of May 15th. Other bills will go to the House floor in the following order: Homeland Security; Energy and Water; Legislative Branch; Foreign Operations; Transportation; Defense; Labor – Health and Human Services; and Science, State, Justice and Commerce. With domestic discretionary spending limited, bills are expected to be tight, particularly the Department of Interior-EPA appropriations bill.

Eye on Congress

Congressional Reform Efforts. During the 108th Congress, the Senate Committee on Indian Affairs (SCIA) began an investigation into the dealings of then-lobbyist Jack Abramoff. Since that time, the public has learned that Abramoff was engaged in a number of corrupt dealings on behalf of unknowing tribal and non-tribal clients alike. The scandal led Congress to embark on a series of reform efforts to address lobbying as a profession; earmarks as a congressional practice; and campaign contributions made by Indian tribes.

The media portrayed tribes as both complicit and guilty parties. However, Indian Country has tried to clarify that the scandal was perpetrated by a deceitful lobbyist; and that tribes were not only innocent of breaking the law but rather the victims of a criminal. Unfortunately, negative press resulted in efforts to limit tribal involvement in the democratic process. Due in part to the hard work and communication by individual tribes and tribal organizations, the Senate adopted the Legislative Transparency and Accountability bill on March 29 without any tribal-specific language or amendments. Though this battle was won, two days earlier the Federal Election Commission issued a controversial ruling on the definition of “federal election activity”. Although the ruling is unrelated to tribal campaign finance contributions, it may inevitably lead to additional campaign finance legislation, which provides a vehicle for tribal attacks. We will continue to monitor this issue and alert you to any developments.

Gaming Legislation. Indian Gaming has been the topic of a series of hearings during the 109th Congress, including six hearings and mark-ups during the first quarter of the Second Session. Minimum Internal Control Standards (MICS), review of gaming contracts and regulatory oversight by the National Indian Gaming Commission (NIGC) and the implementation of Section 20 of the Indian Gaming Regulatory Act (IGRA) have all been addressed in various hearings.

The implementation of Section 20, which provides exceptions to the general prohibition of gaming on lands acquired after Congress enacted IGRA in 1988, has been highly controversial. The process, which has also been referred to as “reservation shopping,” is broadly understood as the process of taking economically viable land into trust in order to conduct gaming, possibly without open involvement with the surrounding communities and nearby tribes.

Indian Country had not taken a unified position on Section 20, which has been implemented for over 17 years without any regulations. Some believe that any congressional amendment to IGRA would provide a vehicle for attacking tribal economic development. In an effort to avoid the opening of IGRA, the Department of the Interior has drafted proposed regulations for Section 20. However, the Senate Committee on Indian Affairs and the House Resources Committee do not believe the regulations will be implemented soon enough to address the problem of reservation shopping.

The Senate Committee on Indian Affairs recently marked up S. 2078, a bill that would amend IGRA to expressly authorize the NIGC to regulate class III gaming and would apply additional approval procedures, minimum internal control standards, and limits on lands eligible for gaming, among other provisions. The Committee changed the bill’s original deadline for submission of two-part determination applications from November 18, 2005 to April 15, 2006. However, Senator McCain (R-AZ) warned that he might seek an amendment on the Senate floor to move the date back if there was a “flood” of submissions. At this time no official number of submissions has been released by DOI.

Border Security/Immigration Reform. The Senate has temporarily ended consideration of S. 2454, a bill to amend the Immigration and Nationality Act to provide for comprehensive reform. Following a stalemate between Senate Majority Leader Bill Frist (R-TN) and Senate Minority Leader Harry Reid (D-NV) on limitations of the number of amendments to be offered, the Judiciary Committee announced its intent to report a revised bill to the Senate the first week of May to provide for further consideration and hopefully conclusion of the bill. Both leaders met with President Bush over the April recess and returned committed to passing the bill before the Memorial Day recess. Reports indicate that the President expressed his support for a more comprehensive bill, expanding border security provisions to include a proposed guest worker program.

Floor Action

Native American Technical Corrections Act of 2005. On January 27, 2006, the Native American Technical Corrections Act of 2005 (H.R. 3351), a bill to make technical corrections to laws relating to Native Americans, was referred to the Committee on Indian Affairs. The House agreed to the bill under suspension of the rules on November 16, 2005 after amending the bill to grant the Paskenta Band of Nomlaki Indians 99-year lease authority over its reservation. On April 7, the Senate Committee on Indian Affairs discharged the bill and laid the measure before the Senate, where it was passed with an amendment by Unanimous Consent. The same day a message was sent to House reporting the Senate’s action.

The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation. On February 1, 2006, the Senate passed S. 1219, a bill to allow the Assiniboine and Sioux Tribes of the Ft. Peck Indian Reservation to enter into a lease or other temporary conveyance of water rights recognized under the Fort Peck-Montana Compact for the purpose of meeting the water needs of the Dry Prairie Water Association Inc. The bill was received in the House; referred to the Committee on Resources on February 7, 2006; and referred to the Subcommittee on Water and Power the following day, where Executive Comment was requested from the Department of the Interior.

Alaskan Natives. On February 28, the House passed S. 449 under suspension of the rules, clearing the measure for the President. S. 449 is a bill to facilitate shareholder consideration of proposals to make Settlement Common Stock under the Alaska Native Claims Settlement Act available to missed enrollees, eligible elders, and eligible persons born after December 18, 1971.

Office of National Drug Control Policy (ONDCP) Reauthorization Act of 2005. On March 9, the House passed H.R. 2829, a bill to reauthorize the Office of National Drug Control Policy Act. Congressman Rick Renzi (R-AZ) offered an amendment (No. 14 printed in H. Rept. 109-387) directing the ONDCP to report to Congress on the representation of Tribal governments in the High Intensity Drug Trafficking Areas Program and in high intensity drug trafficking areas designated under that program. The report shall include a list of Tribal governments represented, an explanation of the rationale for the level of representation, and recommendations by the director for the methods for increasing the number of Tribal governments represented in the Program. The amendment passed.

Office of National Drug Control Policy (ONDCP) Reauthorization Act of 2005. On March 14, 2006, the Senate adopted amendment No. 3019 to a bill reauthorizing the Department of Justice office. The amendment, sponsored by Senator Talent (R-MO), will provide $99,000,000 in COPS Hot Spots funding as authorized in the Combat Methamphetamine Act. The amendment applies to the recently passed reauthorization of the USA PATRIOT Act. The Senate also adopted an amendment from Sen. Max Baucus (D-MT) to expand funding for the High-Intensity Drug Trafficking Area Program.

National Methamphetamine Prevention Week. On April 5, 2006, the House, under suspension of the rules, considered H. Res. 556, a bill expressing the sense of the House of Representatives that a National Methamphetamine Prevention Week should be established to increase awareness of methamphetamine and to educate the public on ways to help prevent the use of that damaging narcotic. The bill was marked-up by the committee and favorably reported on March 9. On April 6, the House voted and the measure passed, clearing the way for the President’s signature.

Native American Technical Corrections Act of 2005. On April 7, 2006, the Senate passed H.R. 3351, a bill to make technical corrections to laws relating to Native Americans, and for other purposes. On behalf of Senator McCain (R-AZ), Senator McConnell requested that the Committee on Indian Affairs be discharged from further consideration of the bill, and that the Senate proceed to immediate consideration. McConnell requested that the Senate pass the bill with a substitute amendment, which included most of the provisions in the original House version of the bill as well as some amendments that were not in the House version. The bill passed as amended.

Committee Action

Reports

The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation. On January 24, the Senate Committee on Indian Affairs reported S. 1219, a bill to authorize certain tribes in the State of Montana to enter into a lease or other temporary conveyance of water rights to meet the water needs of the Dry Prairie Rural Water Association, Inc. (S. Rept. No. 109-213).

Lobbyist Access Resolution. On January 31, the House Committee on House Administration reported H. Res. 648, to eliminate floor privileges and access to Member exercise facilities for registered lobbyists who are former Members or officers of the House (H. Rept. 109-369, Part I).

Higher Education Bill. On February 28, the Senate Health, Education, Labor and Pensions Committee reported S. 1614, a bill to extend the authorization of programs under the Higher Education Act of 1965, and for other purposes (S. Rept. No. 109-218).

Legislative Transparency and Accountability Act. On March 1, the Senate Rules and Administration Committee reported S. 2349, an original bill to provide greater transparency in the legislative process without a written report.

Lobbying Reform Bill. On March 2, the Senate Homeland Security and Governmental Affairs Committee reported S. 2128, a bill to provide greater transparency with respect to lobbying activities, with an amendment in the nature of a substitute, without a written report.

NAHASDA. On March 16, the Senate Committee on Indian Affairs filed a report on S. 598, a bill to reauthorize provisions in the Native American Housing Assistance and Self-Determination Act of 1996 relating to Native Hawaiian low-income housing and Federal loan guarantees for Native Hawaiian housing with no amendments (S. Rept. No. 109-221). The measure was placed on the Senate Legislative Calendar (No. 374), referred to the Committee on Banking, Housing, and Urban Affairs by unanimous consent on April 4, 2006, and discharged by the Committee by Unanimous Consent and ordered placed on the Senate Legislative Calendar (No. 390).

Indian Health Care Improvement Act Amendments. On March 16, the Senate Committee on Indian Affairs filed a report on S. 1057, a bill to amend the Indian Health Care Improvement Act to revise and extend that Act, with an amendment in the nature of a substitute (S. Rept. No. 109-222). It was subsequently Placed on Senate Legislative Calendar (No. 375).

Indian Child Protection and Family Violence Prevention Act Amendments. On March 29, the Senate Committee on Indian Affairs ordered S. 1899, a bill to amend the Indian Child Protection and Family Violence Prevention Act to identify and remove barriers to reducing child abuse, to provide for examinations of certain children, and for other purposes, to be reported with an amendment in the nature of a substitute favorably. A report has not yet been filed.

Pueblo de San Ildefonso Claims Settlement Act of 2005. On March 29, the Senate Committee on Indian Affairs ordered S. 1773, a bill to resolve certain Native American claims in New Mexico, and for other purposes, to be reported with an amendment favorably. A report has not yet been filed.

Indian Youth Telemental Health Demonstration Project Act. On April 24, the Senate Committee on Indian Affairs reported S. 2245, a bill to establish an Indian youth telemental health demonstration project for suicide prevention, intervention and treatment of Indian youth, without amendment (S. Rept. No. 109-250).

Markups

SCIA Business Meeting: S.2078 and other measures. On March 29, the Senate Committee on Indian Affairs held a business meeting to markup S. 2078, the Indian Gaming Regulatory Act Amendments of 2005, and voted without objection to favorably report to the full Senate the bill, as amended. Chairman McCain (R-AZ) introduced the bill on November 18, 2005 and several hearings were held on the bill.

At the beginning of the business meeting, the Committee also voted to favorably report to the full Senate three non-controversial bills S. 1899, the Indian Child Protection and Family Violence Protection Act Amendments of 2005; S. 2245, the Indian Youth Telemental Health Demonstration Project Act; and S. 1773, the Pueblo of San Ildefonso Claims Settlement Act of 2005.

House Resources Committee: Miscellaneous measures. On March 29, the House Resources Committee continued a markup of pending legislation, a continuation of the markup begun on March 16. H.R. 374, introduced by Congressman Dicks (DWA), a bill to direct the Secretary of the Interior to take certain tribally-owned reservation land into trust for the Puyallup Tribe, was order to be reported favorably following an amendment in the nature of a substitute, offered by the Chairman of the Committee Representative Pombo (R-CA). Also ordered to be reported favorably was H.R. 2987, a bill to allow the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation to enter into a lease or other temporary conveyance of water rights recognized under the Fort Peck-Montana Compact for the purpose of meeting the water needs of the Dry Prairie Water Association, Inc. The bill was introduced by Congressman Rehberg (R-MT).

Hearings

Off-Reservation Gaming. On February 1, the Senate Committee on Indian Affairs held a hearing to focus on the restored lands and initial reservation lands exceptions to the general prohibition of gaming on lands acquired after Congress enacted IGRA in 1988. The Committee received testimony from:

• George Skibine, Acting Deputy Assistant Secretary, Department of the Interior;

• Penny Coleman, Acting General Counsel, National Indian Gaming Commission;

• Philip Harju, Councilman, Cowlitz Indian Tribe, Washington State;

• Al Alexanderson, Landowner and Citizens Against Reservation Shopping; Stand Up for Clark County and American Land Rights Association;

• Duane Kromm, Supervisor, Solano County Board of Supervisors and California State Association of Counties; and

• Liz Thomas, Taxpayers of Michigan Against Casinos.

Campaign Finance Reform. On February 8, the Senate Committee on Indian Affairs held a hearing on campaign finance reform, following assertions that a tribal “loophole” for contributions existed. The majority of the panel as well as the Committee indicated strong support for transparency, without necessarily mandating that tribes form Political Action Committees (PACs) to organize their contributions. Testimony was heard from:

• Michael Toner, Chairman, Federal Election Commission (FEC);

• Robert Lenhard, Vice-Chairman, FEC;

• Philip Hogen, Chairman, National Indian Gaming Commission;

• Honorable Ron Allen, Treasurer, National Congress of American Indians and Chairman of the Jamestown S’Klallam Tribe;

• Larry Noble, Executive Director, Center for Responsive Politics; and

• Professor James Thurber, Director, Center for Congressional and Presidential Studies.

President’s Fiscal Year 2007 Budget Request for Indian Programs. On February 14, the Senate Committee on Indian Affairs held a hearing regarding the President’s proposed budget for Indian programs in fiscal year 2007. In addition to addressing controversial cuts to the Johnson O’Malley program and the Urban Indian Health program, Senators questioned Department of the Interior regarding their decision to pay Cobell v. Norton attorney fees with Indian program funds. The Committee received testimony from:

• James Cason, Associate Deputy Secretary, Department of the Interior;

• Dr. Charles Grim, Director, Indian Health Service;

• Darla Marburger, Deputy Assistant, Office of Elementary and Secondary Education;

• Orlando Cabrera, Assistant Secretary, Office of Public and Indian Housing;

• Regina Schofield, Assistant Attorney General, Office of Justice Programs;

• Honorable Joseph Garcia, President, National Congress of American Indians and Governor of the Ohkay Owingeh;

• Honorable Kathleen Kitcheyan, Member, National Indian Health Board and Chairwoman of the San Carlos Apache Tribal Council;

• Ryan Wilson, President, National Indian Education Association;

• Cheryl Parish, Secretary and Board Member, National American Indian Housing Council; and

• Gary Edwards, Chief Executive Officer, National Native American Law Enforcement Association.

Indian Gaming – Two-Part Determination Process. On February 28, the Senate Indian Affairs Committee held a hearing on the two-part determination process for taking land into trust under Section 20 of the Indian Gaming Regulatory Act. During the hearing, Governor Kulongoski (D-OR) was invited to speak and, while not a proponent of gaming, he expressed his support for the two-part process, citing the needs of tribes as a pivotal factor. The following witnesses presented testimony at the hearing:

• George Skibine, Acting Deputy Assistant Secretary, Department of the Interior;

• Honorable Ron Suppah, Chairman, Confederated Tribes of the Warm Springs Reservation of Oregon;

• Cheryle Kennedy, Chairwoman, Confederated Tribes of the Grand Ronde Community;

• Carol York, Commissioner, Hood River County;

• Michael Lang, Conservation Director, Friends of the Columbia Gorge; and

• Cheryl Schmit, Director, Stand Up for California.

Cobell v. Norton Litigation. On March 1, the House Resources Committee and the Senate Committee on Indian Affairs held a joint hearing to address the possibility of a legislative settlement to the Cobell litigation, the class action suit against the federal government regarding the mismanagement of Individual Indian Monies (IIM) trust accounts. Comments from the first three witnesses focused on determining a dollar amount for the proposed settlement, though no figures were proposed. The following witnesses presented testimony:

• Stuart Eizenstat, attorney and former party to the Holocaust reparations;

• John Bickerman, President of Bickerman Dispute Resolution and mediator for the Cobell v. Norton lawsuit;

• Sandra Johnigan, Forensic Accounting Specialist;

• Honorable Mike Marchand, Member, Affiliated Tribes of Northwest Indians and Vice-President of the Colville Confederated Tribes;

• Honorable Joe Garcia, President of the National Congress of American Indians and Governor of the Ohkay Owingeh;

• Honorable Keller George, President of the United South and Eastern Tribes; and

• Honorable Harold Frazier, Chairman of the Great Plains Tribal Chairman’s Association.

Rural Telecommunications. On March 7, the Senate Commerce, Science and Transportation Committee held a hearing on rural telecommunications, which also addressed problems with telecommunications in Indian Country. During the hearing many witnesses identified the need for broadband access within Indian Country, and National Congress of American Indians President Garcia stated the right-of-way must be negotiable by tribal officials.

S. 2078 – Contract and Regulatory Provisions. On March 8, the Senate Committee on Indian Affairs held a hearing on the contract and regulatory provisions contained in S. 2078, the Indian Gaming Regulatory Act Amendments of 2005. Philip Hogen, Chairman of the National Indian Gaming Commission (NIGC), expressed strong support for clarification of NIGC authority over Class III gaming but was cautious about the contract review provisions. The Committee heard testimony from:

• Philip Hogen, Chairman, National Indian Gaming Commission;

• Honorable Ron His Horse Is Thunder, Chairman, Standing Rock Sioux Tribe;

• Honorable Norman DesRosiers, Commissioner, Viejas Tribal Government Gaming Commission; and

• Paul Bullis, Director, Arizona Department of Gaming.

Indian Health Service Budget. On March 8, the House Appropriations Subcommittee on Interior, Environment and Related Agencies held a hearing on the Indian Health Service Budget. Following criticism regarding the Urban Indian Health Program and clinic construction cuts and praise for achieved progress, Committee Chairman Taylor (R-NC) stated his intention to restore or increase funding for FY 2007. The Committee heard testimony from:

• Dr. Charles Grimm, Director, Indian Health Services (IHS);

• Robert McSwain, Deputy Director, IHS;

• Dr. Craig Vanderwagen, Acting Chief Medical Officer;

• Gary Hartz, Director, Environmental Health and Engineering; and

• Norris Cochran, Director, Division of Discretionary Programs at Department of Health and Human Services.

Off-Reservation Gaming. On March 15, the House Resources Committee held a hearing on H.R. 4893, to amend Section 20 of the Indian Gaming Regulatory Act to restrict off-reservation gaming. Testimony was heard from:

• James Cason, Associate Deputy Secretary, Department of the Interior (DOI), accompanied by George Skibine, Acting Deputy Assistant Secretary (DOI); and

• Phil Hogen, Chairman, National Indian Gaming Commission (NIGC), accompanied by Penny Coleman, Acting General Counsel, NIGC.

Child Abuse Reduction. On March 15, the Senate Committee on Indian Affairs held a hearing to address S. 1899, the “Indian Child Protection and Family Violence Prevention Act”. The following witnesses presented testimony:

• Pat Ragsdale, Director, Bureau of Indian Affairs;

• Robert McSwain, Deputy Director, Indian Health Service;

• James Burrus, Deputy Assistant Director, Criminal Investigation Division at the Federal Bureau of Investigations;

• Honorable Ron Suppah, Chairman, Confederated Tribes of the Warm Springs Reservation of Oregon;

• Terry Cross, Executive Directorm, National Indian Child Welfare Association; and

• Dr. Paul Steele, Director, Center for Justice Studies at Morehead State University in Kentucky.

Indian Trust Reform. On March 28, the Senate Committee on Indian Affairs held a hearing on S. 1439, a bill to provide for Indian trust asset management reform and resolution of historical accounting claims, and for other purposes. The hearing specifically focused on Titles II-VI of the bill. Testimony was given by:

• James Cason, Associate Deputy Secretary, Department of the Interior;

• Ross Swimmer, Special Trustee for American Indians;

• Honorable Tex Hall, Chairman, Mandan, Hidatsa, and Arikara Nation(Three Affiliated Tribes);

• Honorable Jim Gray, Chairman, Board of Directors, Inter-Tribal Monitoring Association and Principal Chief of the Osage Nation;

• Honorable Clifford Marshall, Chairman, Hoopa Valley Tribal Council;

• Honorable Austin Nunez, Chairman, San Xavier District Indian Land Working Group; and

• Majel Russell, attorney, Elk River Law Office.

Native American Financial Development. On March 29, the House Resources Committee held a hearing on H.R. 3350, a bill to amend the Native American Business Development, Trade Promotion, and Tourism Act of 2000 to establish the Tribal Development Corporation Feasibility Study Group. Testimony was presented by:

• Honorable Joe Garcia, President, National Congress of American Indians and Governor of the Ohkay Owingeh;

• Roger Fragua, Deputy Director, Council of Energy Resources Tribes; and

• Cheryl Parrish, Secretary, National American Indian Housing Council.

Pechanga Band of Luiseno Mission Indians. On March 29, the Senate Public Lands and Forests Subcommittee held a hearing which addressed, among other measures, H.R. 3507, a bill to transfer certain land in Riverside County, California, and San Diego County, California, from the Bureau of Land Management to the United States to be held in trust for the Pechanga Band of Luiseno Mission Indians, and for other purposes.

Senate Interior Appropriations – DOI. On March 29, the Senate Appropriations Subcommittee on Interior and Related Agencies held a hearing on FY2007 appropriations for the Interior Department.

House Interior Appropriations – BIA and IHS. On March 30, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies held its annual hearing for tribal witnesses to comment on the latest budget request for the Bureau of Indian Affairs and the Indian Health Service. Numerous tribal leaders provided oral and written testimony on their unmet needs and the inadequate levels of funding requested by the Administration.

Internet Gambling. On April 5, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing to address H.R. 4777, the Internet Gambling Prohibition Act, a bill to amend title 18 of the United States Code to expand and modernize the prohibition against interstate gambling, and for other purposes. The Committee received testimony from:

• Representative Bob Goodlatte (R-VA), Chairman of the Agriculture Committee;

• John Kindt, professor, University of Illinois;

• Bruce Ohr, Chief, Organized Crime and Racketeering Section at the Justice Department; and

• Sam Vallandingham, Vice-President and Chief Information Officer, The First State Banks.

Off-Reservation Gaming. On April 5, the House Resources Committee held another hearing on H.R.4893, a bill to amend the Indian Gaming Regulatory Act to restrict off-reservation gaming. Witnesses included:

• John Shagonaby, Tribal Council Member and Treasurer, Match-E-Be-Nash-E-Wish Band of Pottawatomi Indians (a.k.a. Gun Lake) (MI);

• Donald Arnold, Chairman, Scotts Valley Band of Pomo Indians (CA);

• Jacquie Davis-Van Huss, Tribal Secretary, North Fork Rancheria of Mono Indians of California;

• Fulton Sheen, Michigan State Representative, representing “23 is Enough”;

• JoAnn Osmond, Illinois State Representative;

• Steven Worthley, member, Tulare County, on behalf of California State Association of Counties; and

• Randy King, member, Board of Trustees, Shinnecock Indian Nation.

Methamphetamine Problem in Indian Country.On April 5, the Senate Committee on Indian Affairs held an oversight hearing on the problem of methamphetamine in Indian Country. Testimony identified a need for coordinated effort between federal, state, local and tribal governments as well as law enforcement agencies. All panel members agreed that the situation, while a national problem, was exacerbated within Indian Country and causing significant damage to communities and especially children. Testimony was given by the following witnesses:

• Pat Ragsdale, Director, Bureau of Indian Affairs (BIA)(Mr. Ragsdale was accompanied by BIA officials Chris Chaney, Deputy Bureau Director, Office of Law Enforcement Services, and Jerry Gidner, Deputy Bureau Director, Tribal Services);

• Robert McSwain, Deputy Director, Indian Health Service (IHS) (Mr. McSwain was accompanied by Jon Perez, Director, IHS Division of Behavior Health);

• Anthony Dekker, Associate Director, Clinical Services, Phoenix Indian Medical Center;

• Matthew Mead, U.S. Attorney’s Office of the District of Wyoming;

• Honorable Kathleen Wesley-Kitcheyan, Chairwoman, San Carlos Apache Tribe;

• Honorable Jefferson Keel, First Vice-President, National Congress of American Indians and Lieutenant Governor of the Chickasaw Nation;

• Gary Edwards, Chief Executive Officer, National Native American Law Enforcement Association; and

• Karrie Azure, United Tribes Technical College Multi-Tribal Indian Drug and Alcohol Initiative.

Indian Legislation Introduced– First Quarter

House

H.R. 4677 (Rogers, R-MI). A bill to impose a two year moratorium on the approval by the Secretary of the Interior of new Tribal-State compacts for gaming under the Indian Gaming Regulatory Act; referred to the Committee on Resources on January 31, 2006; Executive Comment from the Department of the Interior was requested on February 2, 2006.

H.R. 4766 (Wilson, R-NM). Native American Languages Act. A bill to amend the Native American Languages Act to provide for the support of Native American language survival schools, and for other purposes; referred to the Committee on Education and the Workforce on February 15, 2006.

H.R. 4801 (Stupak, D-MI). Michigan Indian Land Claims Settlement Act Amendments. A bill to extend the deadlines for distributing certain funds secured by the Michigan Indian Land Claims Settlement Act and for other purposes; referred to the Committee on Resources on February 16, 2006; Executive Comment from the Department of the Interior was requested on February 24, 2006.

H.R. 4802. (Stupak, D-MI). Burt Lake Band of Ottawa and Chippewa Indians Reaffirmation Act. A bill to reaffirm and clarify the Federal relationship of the Burt Lake Band as a distinct federally recognized Indian Tribe, and for other purposes; referred to the Committee on Resources on February 16, 2006; Executive Comment from the Department of the Interior was requested on March 1, 2006.

H.R. 4876 (Udall, D-NM). A bill to ratify a conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County, State of New Mexico, pursuant to the settlement of litigation between the Jicarilla Apache Nation and Rio Arriba County, State of New Mexico, to authorize issuance of a patent for said lands, and to change the exterior boundary of the Jicarilla Apache Reservation accordingly, and for other purposes; referred to the Committee on Resources on March 2, 2006; Executive Comment from the Department of the Interior was requested on March 7, 2006.

H.R. 4863 (Diaz-Balart, R-FL). A bill to establish a pilot program in the Department of State for improvement of government-to-government relations with the Miccosukee Tribe of Indians of Florida; referred to the Committee on Resources on March 2, 2006; Executive Comment from the Department of the Interior was requested on March 7, 2006.

H.R. 4871 (Pallone, D-NJ). Tribal Government Homeland Security Coordination and Integration Act. A bill to ensure the coordination and integration of Indian tribes in the National Homeland Security strategy and to establish an Office of Tribal Government Homeland Security within the Department of Homeland Security, and for other purposes; referred to the Committee on Resources and to the Committee on Homeland Security on March 2, 2006; Executive Comment from the Department of Homeland Security was requested on March 9, 2006.

H.R. 4893 (Pombo, R-CA). A bill to amend Section 20 of the Indian Gaming Regulatory Act to restrict off-reservation gaming; referred to the Committee on Resources on March 7, 2006; Executive Comment from the Department of the Interior was requested on March 13, 2006; hearings held on March 15, 2006 and April 5, 2006.

H.R. 4934 (Udall, D-CO). A bill to amend the Carl D. Perkins Vocational and Technical Education Act of 1998 to modify the definition of “Indian student count”; referred to the Committee on Education and the Workforce on March 9, 2006.

H.R. 4936 (Udall, D-CO). National Fund for Excellence in American Indian Education Amendments Act. A bill to amend the Indian Self-Determination and Education Assistance Act to modify provisions relating to the National Fund for Excellence in American Indian Education; referred to the Committee on Education and the Workforce and to the Committee on Resources, on March 9, 2006; Executive Comment from the Department of Education was requested on March 27, 2006.

H.R. 4951 (Grijalva, D-AZ). Cocopah Lands Act. A bill to direct the Secretary of the Interior to take lands in Yuma County, Arizona, into trust as part of the reservation of the Cocopah Indian Tribe, and for other purposes; referred to the Committee on Resources on March 14, 2006; Executive Comment from the Department of the Interior was requested on March 16, 2006.

H.R. 5130 (Davis, R-VA). A bill to extend Federal recognition to the Rappahannock Tribe, and for other purposes; referred to the Committee on Resources on April 6, 2006.

H.R. 5125 (Costa, D-CA). A bill to amend the Indian Gaming Regulatory Act to provide that the Secretary of the Interior shall not approve a Tribal-State gaming compact under that Act unless the State involved has a State law providing for a gaming master plan that has been approved by the Secretary; referred to the Committee on Resources on April 6, 2006.

Senate

S. Res. 358 (Johnson, D-SD). A resolution expressing the sense of the Senate that the Secretary of Health and Human Services, acting through the Director of Indian Health Service, should maintain the current operating hours of the Wagner Service Unit until the Secretary submits to Congress a new report that accurately describes the current conditions at the Wagner Service Unit; referred to the Committee on Indian Affairs on January 30, 2006.

S. 2245 (Dorgan, D-ND). Indian Youth Telemental Health Demonstration Project Act. A bill to establish an Indian youth telemental health demonstration project for suicide prevention, intervention and treatment of Indian youth; referred to the Committee on Indian Affairs on February 6, 2006; ordered to be reported favorably, without amendment, on March 29, 2006, Rept. No. 109-250.

S. 2378 (Inouye, D-HI). Broadband Data and E-rate Improvement Act. A bill to amend the Communications Act of 1934 to ensure that tribal libraries that receive assistance under the Library Services and Technology Act are eligible for E-rate assistance to the same extent as other libraries receiving such assistance and for other purposes; referred to the Committee on Commerce, Science, and Transportation on March 7, 2006.

S. 2464 (McCain, R-AZ). Fort McDowell Indian Community Water Rights Act. A bill to revise a provision relating to a repayment obligation of the Fort McDowell Yavapai Nation under the Fort McDowell Indian Community Water Rights Settlement Act of 1990, and for other purposes; referred to the Committee on Indian Affairs on March 28, 2006.

S. 2552 (McCain, R-AZ). Indian Tribes Methamphetamine Reduction Grants Act. A bill to amend the Omnibus Control and Safe Streets Act of 1968 to clarify that Indian tribes are eligible to receive grants for confronting the use of methamphetamine, and for other purposes; referred to the Committee on the Judiciary on April 5, 2006.

S. 2586 (Kerry, D-MA). Minority Entrepreneurship and Innovation Pilot Program of 2006. A bill to establish a 2-year pilot program to develop a curriculum at historically Black colleges and universities, Tribal Colleges, and Hispanic serving institutions to foster entrepreneurship and business development in underserved minority communities; referred to the Committee on Small Business and Entrepreneurship on April 6, 2006.

EXECUTIVE BRANCH

Cason Cuts Bureau of Indian Affairs Program Budget to Award Cobell v. Norton Attorney’s Fees. On January 26, Associate Deputy Secretary Jim Cason at the Department of Interior announced that the Cobell v. Norton case had had an affect “upon the financial resources available to carry out Indian programs”. Due to the case, addressing historical wrongs regarding the federal government’s mismanagement of trust accounts and trust resources, Cason planned to cut approximately $1 million from the BIA budget using an across-the-board retention (with some exclusions) of program funds. The letter indicated that the decision was made to aid in the prompt payment of attorney’s fees, unexpectedly awarded by the U.S. District Court to the Cobell attorneys. Cobell attorney’s informed Indian Country at the National Congress of American Indians Winter Legislative Summit that the motion had been pending for more than one year and represented a policy decision made by the Bureau, not a mandated rescission from the U.S. District Court.

The funding was later reinstated when the Saginaw Chippewa Tribe of Michigan returned funds slated for construction of a tribal school and asked specifically that they be used to replaced funds used for the Cobell attorney’s fees.

DOI Draft Regulations on the Indian Gaming Regulation Act (IGRA) Section 20. On February 1, George Skibine, Acting Deputy Assistant Secretary of Policy and Economic Development for the Bureau of Indian Affairs, presented a draft proposed rule for establishing criteria for implementation of Section 20 of IGRA. Skibine has stated that DOI believed the approach would alleviate some Congressional concerns with off-reservation gaming. Skibine has also stated that the new regulations would only apply to new applications, and existing applications would continue to be reviewed and considered under existing rules.

The draft proposed regulations were officially released on March 15 via a “Dear Tribal Leaders” letter. Four tribal consultation sessions took place across Indian country between March 30 and April 20. Comments can still be mailed or hand delivered to the Office of Indian Gaming Management, 1849 “C” Street, N.W. MS-3657-MIB, Washington, D.C. 20240. Contact phone number: 202 219 4066. Fax number: 202 273 3153.

DOE and DOI Section 1813 Energy Rights of Way Study. Under the Energy Policy Act of 2005, Public Law 109-58, Title XVIII, Section 1813, the Departments of Energy and Interior (“the Departments”) are required to study Indian Energy Rights of Way and report to Congress by August 7, 2006 (referred to as the “Section 1813 Study”). In the more than four years that Congress debated and considered the comprehensive energy legislation leading up the passage of the Act in August of 2005, the issue of Indian energy rights of way (ROW) did not arise until the tail end of the process. Specifically, the New Mexico Oil and Gas Association (NMOGA) raised this issue, primarily in response to an impasse in negotiations between the Navajo Nation and El Paso energy company over the renewal of 900 miles of ROW for the company’s pipelines that cross Navajo lands. NMOGA initially proposed a provision that would empower the Secretary of the Interior to condemn Indian lands for energy ROW under certain circumstances where the tribe and energy company are unable to reach agreement on compensation and other matters.

The Departments held two public scoping meetings, March 7-8 and April 18-20, in Denver, Colorado. Indian Country concerns were heard and written testimony was received. Several energy companies also attended both meetings and claimed that ROWs on tribal lands cost significantly more than other ROWs. The Departments will continue to receive comments on the study through May 15th . A draft report of the study is expected for public review by July 1st in preparation for several tribal consultations and regional, public meetings between July 10th and July 19th. Comments on the draft report will be due July 24th. For additional information, please contact the Washington, D.C. office or visit http://1813.anl.gov/index.cfm

Public Laws

Public Law 109-157, to amend the Indian Land Consolidation Act to provide for probate reform (S. 1481). Signed on January 18, 2006.

Public Law 109-179, To facilitate shareholder consideration of proposals to make Settlement Common Stock under the Alaska Native Claims Settlement Act available to missed enrollees, eligible elders, and eligible persons born after December 18, 1971, and for other purposes (S. 449). Signed on March 13, 2006.

Supreme Court

Judge Samuel Alito. On January 31, 2006 the Senate confirmed Judge Samuel Alito Jr. as an Associate Justice to the United States Supreme Court. Alito has limited experience with federal Indian Law, having written only one judicial opinion in the field in 2004. However, in Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), Alito ruled in favor of a Native American holy man who kept black bears on his property for religious ceremonies.

Alito’s real significance for Indian Country arises in his replacement of Sandra Day O’Connor, a frequent carrier of the swing vote on Indian Law cases for the high court. Justice O’Connor was known to be displeased with other jurists for their limited view of tribal sovereignty but often voted against tribes regarding reservation diminishment cases. It is unclear to what degree and to what effect his confirmation will have on Indian Country. Alito will remain an unknown as there are currently no Indian cases scheduled before the Court for the remainder of this term.

Tribal Leader Meetings

National Congress of American Indians’ (NCAI) State of Indian Nations Address. On February 16, NCAI President Joe Garcia, and Governor of the Ohkay Owingeh, pronounced the State of the Indian Nations as strong. Drawing on the Four Directions, he paralleled them to Four Great Steps in the Indian Nations agenda: public safety; healthcare; education and the economy; and the Trust settlement. Public safety included border patrol and addressing the methamphetamine crisis in Indian country. Garcia believed the Indian Health Care Improvement Act (IHCIA) reauthorization was imperative and that more funds should be appropriated to support the No Child Left Behind Act, in a culturally appropriate way. Finally, President Garcia insisted that Cobell litigation be settled fairly and quickly.

National Indian Gaming Association’s (NIGA) Winter Legislative Summit. NIGA held its annual Winter Legislative Summit January 31 to February 1. NIGA warned tribal leaders to expect attacks addressing a fictitious campaign finance contribution “loophole” and the National Indian Gaming Commission announced that it was updating the Minimum Internal Control Standards and planning to evaluate tribal Revenue Application Plans. George Skibine, Acting Deputy Assistant Secretary of Policy and Economic Development for the Bureau of Indian Affairs, presented draft regulations for the application of Section 20 of the Indian Gaming Regulation Act (IGRA), a Departmental effort to avoid amendments to IGRA. A “Dear Tribal Leaders” letter asking for additional input would follow on March 15. NIGA concluded with a presentation on public relations. A number of Congressmen attended the meetings and expressed their support for Indian gaming and Indian country.

National Congress of American Indians (NCAI) Winter Session. On February 27-March 2, NCAI held its Winter Session in Washington, D.C. NCAI President, and Chairman of the Okey Ohwingeh, Joe Garcia emphasized the need for Tribal leaders make their presence on Capitol Hill known, noting the importance of tribal presence in the wake of the Abramoff scandal. He further identified priority issues including: campaign finance reform; trust reform; energy; healthcare; public safety; education; the economy; the reauthorization of the Indian Health Care Improvement Act (IHCIA); and the methamphetamine crisis in Indian Country. Other meetings conducted in conjunction with or surrounding the NCAI session included:

• NCAI Tribal Leaders Workgroup on Indian Energy;

• NCAI Tribal Leaders Workgroup on the Department of the Interior Trust Regulations;

• Federal Communications Commission and NCAI Joint Dialogue on Improving Telecommunications Access in Indian Country;

• Bureau of Indian Affairs and Tribal Budget Advisory Council Joint Meeting; and

• National Indian Gaming Association and NCAI Tribal Leaders Gaming Task Force Meeting.

Upcoming Events

May 22-24, 2006 - National American Indian Housing Council (NAIHC) 32nd Anniversary Convention and Trade Show, Honolulu, Hawaii. http://naihc.net/conferences/index.asp

May 25, 2006 – Senate Committee on Indian Affairs Oversight Hearing on Indian Education. 9:30 am, 485 Russell Senate Office Building, Washington, D.C.

June 12, 2006 – National Indian Gaming Association (NIGA) Tribal Leaders Roundtable Meeting. Mashantucket Pequot Tribal Nation National Government Affairs Office, Washington, D.C. Phone: 202 546 7711, Fax: 202 546 1755

June 18-21, 2006 – National Congress of American Indians Mid Year Session. “Not our Borders: Culture and Commerce in the Era of Homeland Security.” Kewadin Casinos Hotel and Convention Center, Sault Ste. Marie, Michigan, 909 632 0530 http://www.ncai.org/Conferences_Events.7.0.html

Indian Law Practice Group
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